GOVERNMENT AND Opposition parties have welcomed the granting of absolute privilege to witnesses appearing voluntarily before Oireachtas committees, which gives them the same protection from legal action as TDs and Senators.
In a background note seen by The Irish Times, Leinster House legal adviser Melissa English wrote that the Defamation Act "affords these witnesses the same level of privilege as was previously only afforded to witnesses who were compelled to attend a hearing".
However, she pointed out that “if the witness is directed by the committee to cease giving evidence and the witness continues to do so, the level of protection for statements made after the direction drops to that of qualified privilege”.
Absolute privilege applies “even where the words complained of are published with knowledge of their falsehood and with the intention of injuring another” but this is not the case with qualified privilege.
The lesser defence of qualified privilege will apply where the committee directs a witness to cease giving evidence because, for example, if he or she is deliberately making defamatory statements unconnected with the proceedings.
The change has been implemented by a working group of chairmen of Oireachtas committees headed by Fianna Fáil TD Noel O’Flynn who said: “It is going to help the democratic system for witnesses to know they have absolute privilege now, when they appear and give evidence before Oireachtas committees.
“The responsibility of that privilege means that witnesses would have to ensure that they do not abuse it,” Mr O’Flynn added.
Fine Gael environment spokesman Phil Hogan said: “It is high time that Oireachtas witnesses had privilege. Fine Gael has been calling for this and it dovetails with our drive to afford greater protection to whistleblowers.”
Also welcoming the move, Sinn Féin justice spokesman Aengus Ó Snodaigh said: “It enhances the potential role of committees in terms of investigating issues of public importance.
“It will enable the public to get to the truth on important issues and scandals via their elected representatives without having to rely on costly and lengthy tribunals,” Mr Ó Snodaigh said.
“There will be a need for the committee chairs to be up-skilled so that they can properly direct witnesses,” he added.
Under the terms of section 17(2)(l) of the Defamation Act 2009, witnesses are now being told: “You are protected by absolute privilege in respect of the evidence you are to give.”
Formerly, committee chairmen were obliged to inform witnesses that, members of the committee have absolute privilege, but this privilege does not apply to witnesses appearing before the committee.
The move places an increased responsibility on the chairmen of committees to ensure that witnesses do not abuse their position of absolute privilege.